Part 1: Basic legal concept Flashcards
nature and function of law (examination of law-making processes & institutions)
Meaning of law
rules established by the government to protect society
Customs
expected behavioural patterns
Rules
boundaries placed on specific branches of society
Laws
affect all of society equally & enforced by the legal system
Ethics
judgement on what are rightful doings in a situation
Values
feelings & principles & attitudes a society/individual holds as being important
Equality
same rights or status
Fairness
freedom from bias, dishonesty or injustice
Access
right/opportunity to make use of something
Procedural fairness
must be fairness in the processes that resolve disputes
Natural justice
everyone should be treated fairly under the law
- right to be heard
- right to unbiased decision-maker
Rule of law
no one is above the law
Anarchy
chaos and disorder due to the absence of rules & laws
Tyranny
single leader has absolute power of country or state
Equity
decisions based on justice & idea of fairness
Precedent
judgement used in later legal decisions
Binding precedent
lower court follows decisions of higher court
Persuasive precedent
influenced by courts of a similar level
Ratio decidendi
reasoning that drives the final decision
Obiter dicta
opinion is not essential to final decision & not legally binding
Inquisitorial system
judge leading the discovery and presentation of evidence
Adversarial system
each side of a case gathering and presenting their own case
Mandamus
compel gov/official to do a task
Injunction
prevent an individual/organisation from doing an action
Prohibition
court order prent lower court’s involvement in a case
Appellate jurisdiction
hear appeals from lower courts
Original jurisdiction
hear a case for the first time, held by all courts
Appeal
challenge of legal decision made
Legally binding
agreement is valid therefore enforceable
Prosecution
prove BEYOND REASONABLE DOUBT
Mediator
independent 3rd party
Magistrate
hears case, decides verdict & sets punishment (limited authority compared to judge)
Local court
magistrate, criminal & civil cases, minor disputes, summary offences, indictable offences (only if enough evidence)
District court
heard by judge, more serious civil cases, motor accidents = claiming $100k-750k
Chief justice
presiding justice of the High Court of Australia
Supreme court
serious criminal cases & civil cases with claims over $750k
High Court of Australia
no jury, 7 judges (chief justice & six justices) = interpretation of the constitution
House of Representatives
lower house & most new legislation (bill) starts here
The Senate
upper house & reviews legislation proposed by the House of Representatives
Governor
representative of the queen in Australia
Statue law
body of principles & rules of law laid down by statues
Division of powers
- legislative (federal make laws)
- concurrent (state & federal make laws)
- exclusive (powers of federal parliament)
- residual (powers of state)
Separation of powers
- legislature (lawmakers)
- executive (ministers & departments administer the law)
- judiciary (courts & judges apply law)
Customary law
principals & procedures developed in accordance to customs of people/nation/group of nations
State sovereignty
right for independent nation to govern itself & free from the interference of other nations
United Nations
the principal aim of maintaining world peace
Intergovernmental organisations (IGOs)
organisations that represent the government
Non-government organisations (NGOs)
representing a variety of special-interest groups
Public law
law governing the relationship between individuals & the government
(public) Criminal law
rules which certain acts are punishable
(public) Constitutional law
focus on governing executive, legislative & judicial ENSURES RULE OF LAW
(public) Administrative law
actions of IGOs to NGOs
Internal review
done by someone in the same agency
External review
done by someone outside of the agency
Judicial review
done by courts
(private) Contract law
deals with the recognition & enforcement of contracts
(private) Tort law
deals with civil wrongs
1. negligence
2. trespass
3. nuisance
4. defamation
(private) Property law
deals with ownership rights of individuals
Summary hearings
in lower court, all evidence heard & final decision made before magistrate
Trial by jury
jury makes verdict (apply law & question the fact) –> if indictable offence = jury & judge make decision
Civil matters
dispute is between 2 or more parties (no relation to state)
Criminal matters
between accused & state
BURDEN OF PROOF
responsibility of a party to prove a case in court
Native law
refers to rights of Aboriginal & Torres Strait Islander peoples to ownership & accessibility to the land
